Most practitioners who represent injured workers cringe when a mental- mental claim is considered. Historically, the burden of proof was so high and difficult that a mental – mental claim was almost impossible to win. A mental- mental claim occurs when the only injury that results from a stimulus at work is mental / psychological. In 1990, the Pennsylvania Supreme Court, in Martin v. Ketchum, required that an injured worker demonstrate “abnormal working conditions” in a mental- mental case as a result of the need to distinguish psychiatric injuries that are compensable because the necessary causal relationship between employment and mental disability has been established from the psychiatric injuries that arise from the employee’s subjective reaction to normal working conditions. Mental- mental cases are based upon facts that are highly sensitive and case specific, and actual working conditions to be considered abnormal needed to be considered in the context of specific employment.
Therefore, despite an almost draconian standard, no bright line test existed to determine what was abnormal. Courts have pointed out that what may be normal for a police officer may not be normal for an office worker. Years ago I litigated a mental – mental case where a bank teller was held up and developed post traumatic stress disorder. The Court denied the claim finding that a bank teller held up while working was a normal occurrence in the specific employment and therefore not abnormal.
In Payes v. WCAB(Commonwealth State Police), perhaps the standard is now more clear and will assist practitioners when contemplating whether an event or stimulus at work rises to the level of abnormal. Payes involved a Pennsylvania State trooper, with 12 years experience, who was driving his patrol car in the dark, early morning hours while working. A mentally disturbed woman dressed in all black ran in front of his car and was killed. The officer developed anxiety and stress and could not return to work, ultimately diagnosed with PTSD. The officer won at the worker’s compensation judge level, was reversed at the Appeal Board level and affirmed by the Commonwealth Court. Essentially the WCAB and Commonwealth Court felt that the trooper, being a police officer, was expected to be a witness to horrible tragedy, and was trained how to deal with such events. As such, the event was not extraordinary or abnormal in the context of the trooper’s job.
The Pennsylvania Supreme Court, however, reversed, and focused on the single incident of striking a pedestrian. That incident alone, and not any comparable sets of incidents, was the focus. The original judge determined that the event was not an event normally experienced or anticipated by employees in the injured worker’s line of work. The Judge found that this single event occurred while the trooper was working. Therefore, “objective” evidence existed that the trooper sustained an injury and disability directly from his work. The injured worker’s mental injury was directly verifiable and connected to an identifiable source.
We still will be highly selective when reviewing mental – mental cases. Perhaps Payes will offer some additional guidance in trying to distinguish an everyday occurrence with an unusual event that causes a mental injury, despite the specific line of work where the event occurred. The blanket type denial of a mental – mental claim in professions where awful things happen frequently may now give way to distinguishing factors that establish an abnormal working condition.
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